Depending on its creator, content, context and consequences, the setting up of a fake Facebook page to impersonate another can range from childish and immature, to disgraceful, to violative of professional ethics, to criminal. When the victim files a civil suit for damages, or a criminal complaint with law enforcement, legal principles are relied upon to resolve it. Their application is necessarily influenced by the fact that, while social media provides virtually limitless opportunities for problematic behavior, American law remains staunchly committed to a robust conception of free speech. This is especially evident when the targets of scurrilous, defamatory speech are deemed to be "public figures," and, most particularly, politicians.

The interplay between these realities renders it difficult in many instances to properly categorize, and then appropriately address, complaints of wrongdoing in cyberspace. As a consequence, the law in this area is in a state of continual flux, with courts and disciplinary entities throughout the country reaching differing conclusions in cases with the same or similar set of facts. That's why today's providers of continuing legal education programs for attorneys invariably include courses on the law governing the use and abuse of social media, including the ethical responsibilities of lawyers and judges who are active on it. To the same end, the American Bar Association's Center for Professional Responsibility has just published "Legal Ethics and Social Media: A Practitioner's Handbook." The 272-page work cites "the dizzying pace at which social media is impacting the legal system."

The Materna page

A Facebook-related controversy swirling about Staten Island's political scene appears destined to become yet another entry in the developing body of Internet law. Two weeks ago, NY1 ran a story alleging that Staten Island attorney Richard Luthmann was the administrator of a Facebook page that surfaced during last year's Republican primary for Staten Island's South Shore Assembly seat. Although containing an easily overlooked disclaimer that it was "an unofficial fan page for community activist and public figure Janine Materna," its content was presented in such a way as to suggest that it was coming from, or authorized by, Materna or her campaign. That's a violation of Facebook's rules and regulations, notwithstanding the inclusion of the disclaimer mandated by the social networking site. Moreover, far from being a "fan page," it was actually devised to denigrate and defeat her, as multiple entries purported to have her taking positions at odds with popular sentiment in the conservative-leaning district.

Although her opponent, Ron Castorina, Jr., the eventual winner of the primary and the seat, denied involvement in the page's creation, NY1 disclosed Facebook conversations between Luthmann and him concerning content to be included on the fake page. The cable news station also tied Luthmann to the creation of a 2015 fake Facebook page in the name of then-District Attorney candidate Michael McMahon, and to yet another one, this year, in the name of incumbent Councilwoman Debi Rose, who's currently involved in a contentious Democratic primary contest with Kamillah Hanks.

Special prosecutor

Last week, the Advance reported that a special prosecutor has been appointed to investigate allegations of criminal impersonation in the second degree, forgery in the third degree and falsifying business records in the second degree, all of which reportedly relate to the fake Facebook issue. A state Supreme Court Justice made the appointment at the request of Staten Island District Attorney Michael McMahon. Although the order refers to three different "John Doe" matters, it's not clear whether the scope of the investigation includes three different complainants or merely one with several complaints.

Reacting to the special prosecutor's appointment, Luthmann declared that his alleged involvement in the fake Facebook pages is "political in nature and is protected speech, at least in America and New York." And, indeed, it may well be just that. The Facebook disclaimers, although hardly eye-catching, are no worse than the legally-enforceable small print that businesses routinely use to stick consumers with such things as hidden charges, high interest rates and Tony Soprano-like late fees. More important, the courts generally exercise remarkable forbearance when it comes to challenges to political speech.

On Feb. 24, 2016, for instance, a panel of the U.S. Court of Appeals for the 6th Circuit struck down an Ohio statute that barred the dissemination of knowingly false information about a political candidate in campaign materials during the campaign season if designed to "promote the election, nomination or defeat of the candidate." Citing several decisions by the U.S. Supreme Court, the Cincinnati-based appellate tribunal declared that "political speech is at the core of First Amendment protections."

The disclaimer aside, the purpose of the fake Materna page can reasonably be viewed as an effort to assume her identity in order to undermine her candidacy. Whether that aggravating factor strips even political speech of its constitutional protection remains to be seen.

[Daniel Leddy's column appears each Tuesday on the Advance Editorial Page. His e-mail address is column@danielleddylaw.com. Follow him on Twitter at twitter.com/LegalHotShots.]